State Consumer Disputes Redressal Commission
M/S. Laxmi Timber Enterprise, Mrep. By ... vs The Oriental Insurance Co. Rep. By Its ... on 19 November, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/90/2016 ( Date of Filing : 02 Mar 2016 ) 1. M/s. Laxmi Timber Enterprise, mRep. by its sole Proprietor Biswajit Palit S/o, Lt. Gurupada Palit, 119/1, Srirampur Road, Kutirpara, Nabadwip, P.O & P.S - Nabadwip, Dist - Nadia. ...........Complainant(s) Versus 1. The Oriental Insurance Co. Rep. by its Branch Manager Ltd. 8/1, D.L. Roy Road, P.O - Krishnanagar, P.S - Kotwali, Dist - Nadia, Pin - 741 101. 2. P.K. Chakraborti & Associates, Rep. by Sri P.K. Chakraborti Chartered Engineers & Industiral Consultants J 1/9, Labony Estate, Salt Lake City, Kol - 700 064. 3. Oriental Bank of Commerce, Rep. by its Branch Manager, Nabadwip Branch NSC Bose Road, Nabadwip Municipality Building, Dist - Nadia, Pin - 741 302. ............Opp.Party(s) BEFORE: HON'BLE MR. SHYAMAL GUPTA PRESIDING MEMBER HON'BLE MR. UTPAL KUMAR BHATTACHARYA MEMBER For the Complainant: Abu Sayem, Kamal Hassan Mollah, Ms. Aparna Shaw, Advocate For the Opp. Party: Mr. Debasish Bhandari., Advocate Md. Nasiruddin., Advocate Dated : 19 Nov 2019 Final Order / Judgement Sri Shyamal Gupta, Member
Brief facts of the complaint case are that the Complainant took one Insurance Policy being no. 313590/11/2016/43 in respect of the Saw Mill namely M/s Laxmi Timber Enterprise which was valid for the period from 07-07-2015 to 06-07-2016. The sum assured of the said policy was Rs. 26,85,000/-. As ill luck would have it, on the midnight of 03-08-2015, entire Nabadwip area, including the saw mill of the Complainant, was flooded due to heavy downpour. As a result, wood timbers, logs and sized beams kept in the mill of the Complainant were carried away/damaged. The matter was immediately brought to the notice of all concerned, including the OPs. Afterwards, one Surveyor visited the mill and carried out extensive inspection. As per the requirement of the said Surveyor, the Complainant submitted all the available documents. Despite this, the complaint case since been not settled, this case is filed by the Complainant.
The OP No. 1, on the other hand, submitted that the Surveyor in unequivocal terms stated in his report that the instant claim of the Complainant was not admissible as per the policy condition. Accordingly, the claim was not settled.
The OP No. 3 submitted that the peril occurred within the validity period of the insurance policy. This OP alleged that the OP Nos. 1&2 in collusion with each other withheld settlement of the Complainant's claim.
We are to decide, whether the Complainant deserves any relief, or not.
Having heard the Ld. Advocates for the parties and on perusal of the documents on record, it appears that there is no dispute as to the fact that the Complainant is a bona fide Insured and the peril occurred within the validity period of the Insurance Policy.
Ld. Advocate appearing on behalf of the OP No. 1 primarily disputed the subject claim on account of non-submission of Meteorological report and FRT.
In order to prove its case, the Complainant filed some photographs of the waterlogged mill premises and surrounding areas wherefrom it transpires that most of the places were under knee-deep water and in some places water even reached the level of chest.
In fact, the Surveyor's email dated 08-08-2015 sent to the OP Insurer bear testimony of the fact that the mill premises was deeply affected owing to incessant rain and resultant flooding. By such mail, the Surveyor candidly admitted that the risk address was out of bound even on 08-08-2015. As we find, despite having due intimation on 06-08-2015, the Surveyor inspected the site only on 12-08-2015. All these facts, to our mind, leave nothing to imagination about the grim situation prevailed therein. The Complainant also submitted newspaper reports in support of its claim.
Despite confronting such reality, when the Insurance Company put its foot down to process a claim till a certificate from the Meteorological Department is arranged by the Insured, it only lays bare the mala fide intention of the Insurer.
As for the FRT, it is submitted by the Ld. Advocate for the Complainant that a GD was lodged with the local Police Station in respect of the instant peril. He further submitted that Police usually file FRT only in case where there is allegation against any person and an FIR is registered against the accused person. The present case being a case of flood loss and not that of theft or burglary or accident, there was no need for the Police to convert the GD into an FIR and file FRT subsequently.
The difference between a first information report and a police complaint is that an FIR relates to the cognizable offence whereas a police complaint can be filed for both non-cognizable and cognizable class of offences. The incident being not a cognizable offence and furthermore, it being the entire liability of the Surveyor to decide the primary admissibility of a claim and assess the value accordingly, there was no reasonable reason for the Surveyor to squarely blame the Complainant for its inability to furnish the copy of FRT.
It appears from the survey report that though in the opinion of the Surveyor, the instant claim was not admissible, yet, he assessed the loss at Rs. 2,71,337/-.
It is noted by the Surveyor in his report that the Insured claimed Rs. 20,45,000/- without any supporting document regarding quantity and rates. However, from the documents on record, we find that the Complainant filed various Tax Invoices wherefrom the value of different kinds of wood could be easily ascertained. That apart, the Surveyor was free to enquire the local market rate of different types of wood to cross-check the Complainant's claim. This aspect remains inexplicable.
According to the Surveyor, there was no such probability that Malaysian round logs of higher diameter were driven away by flood water. Accordingly, he did not take into consideration the value of said woods in his assessment. Observing from the photographs that most of the CP teak woods and Neem woods were converted to planks, he only considered damage to the same due to soil which, according to him, was removable by reprocessing. Accordingly, he considered the salvage of said damaged woods at 75% of the claimed amount.
The logic put forth by the Surveyor as above, however, appears totally unacceptable for the simple reason that in order to determine the proper salvage value, it was incumbent on the part of the Surveyor to invite quotation from at least 3 vendors. On the basis of sheer presumption, that too, merely on the basis of photographs, it was highly improper on the part of the Surveyor to assess the loss.
We have also noted that a Joint Report was prepared by the Surveyor and the Complainant on 13-08-2015. It was duly noted in the said report that due to inundation, some logs, sized beams etc. got carried away which were not traceable as on the date of preparation of the said report. It is noteworthy that the Surveyor did not make any mention of such fact anywhere in his survey report, let alone take the same into consideration while assessing the loss.
Considering all these aspects, we cannot accept the survey report at its face value. It is always desirable that survey work would be carried out in such a manner that no one can call in question the integrity of the Surveyor. We afraid, the manner in which the instant claim was given a thumps down by the Surveyor does not appear to be the handiwork of any independent person.
According to the IRDAI Regulations, in no case shall a Surveyor take more than six months from the date of his appointment to furnish his report and on receipt of said report, the Insurer has to decide the fate of a claim within a period of 30 days therefrom. In this case, as it appears, such Regulatory norms were thrown to the windows by the OP Insurer which is highly deplorable.
In the light of our above discussion and at the same time, taking into consideration the fact that the Complainant could not furnish copies of purchase, sales and stock registers, which are stated to be destroyed/lost because of extensive damage being caused to the office of the Complainant due to flood, we direct the OP No. 1 to settle the instant claim on non-standard basis by paying 75% of the claim amount, i.e., Rs. 15,33,750/- together with simple interest @ 9% p.a. over the aforesaid sum w.e.f. 02-03-2016 till full and final payment is made. Besides this, the OP No. 1 shall also pay Rs. 25,000/- to the Complainant as litigation cost. In case of non-compliance of this order within 40 days hence, Complainant shall be at liberty to execute this order in accordance with law.
The complaint case, accordingly, stands allowed in part. [HON'BLE MR. SHYAMAL GUPTA] PRESIDING MEMBER [HON'BLE MR. UTPAL KUMAR BHATTACHARYA] MEMBER